FILED 


JAN. 15,2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


BRUCE M. BEATTY, ) No. 31409-0-111 

) 

Appellant, ) 

) 

v. ) PUBLISHED OPINION 

) 

WASHINGTON FISH and WILDLIFE ) 


COMMISSION, WASHINGTON ) 


DEPARTMENT OF FISH AND ) 


WILDLIFE, AND POLLUTION ) 


CONTROL HEARINGS BOARD, ) 


) 


Respondents. ) 


KNODELL, J: - Bruce Beatty applied for a hydraulic mining permit to operate a 

suction dredge on Fortune Creek outside ofthe work window dates established by the 

Washington Department ofFish and Wildlife (WDFW) Fish and Gold Pamphlet. The 

WDFW granted the permit, but included a condition that limited suction dredging to the 

dates within the work window. The WDFW informed Mr. Beatty that his request to 

operate a suction dredge outside the work window could still be granted if he provided 

• Judge John D. Knodell is serving as judge pro tempore ofthe Court ofAppeals 

pursuant to RCW 2.06.150. 
No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

site specific infonnation that allowed the WDFW to assess the impact to fish life. Mr. 

Beatty refused and appealed the pennit decision to the Pollution Control Hearings Board 

(PCHB). The PCHB upheld the tenns ofthe pennit, concluding that WDFW's decision 

was reasonably designed to protect fish life and not out ofproportion to the proposed 

dredging activity given the lack ofinfonnation provided by Mr. Beatty. The superior 

court upheld the PCHB's decision. Mr. Beatty appeals. We find no error with the 

PCHB's decision to uphold the pennit. We affinn the decision ofthe superior court. 

FACTS 

The WDFW regulates placer mining statewide.! In 2009, the WDFW instituted the 

current placer mining regulations in the Gold and Fish Pamphlet (Pamphlet). According 

to the Pamphlet, placer miners are allowed to use certain small handheld tools without 

restriction. However, miners using motorized equipment, such as suction dredges, are 

restricted to specific dates established for individual streams throughout the state. Miners 

wishing to prospect outside the allowed mining methods or dates established in the 

Pamphlet can apply to the WDFW for an individual hydraulic project approval (HP A) 

pennit. 

I Placer mining involves searching for gold that has moved away from its original 

host rock, migrated downstream, and settled into the streambed sediment. 

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No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

The specific dates, known as work windows, are developed to protect fish 

spawning activity and egg development through the emergence ofjuvenile fish called fry. 

The timing ofthe work window for each stream is based on the spawning habits of fish 

species residing in the stream. An important spawning habit is the creation of nests, 

called redds. A redd is formed when a spawning female fish excavates a hole in small, 

loose gravel on the stream bed and deposits eggs. After a male fish fertilizes the eggs, the 

female pushes gravel over the eggs. The eggs develop in the gravel. 

Suction dredging mining disturbs gravel in a stream bed, although miners tend to 

target packed gravel as opposed to the loose gravel used by fish. A suction dredge uses a 

gas engine and suction hose to remove material from the stream bed. The material is then 

deposited in a sluice box on a floating platform where the riffle box captures heavier 

gold. The remaining material is discarded from the unit and returned to the stream. 

While operating the suction dredge, the miner is in the water lying prone on or near the 

stream bed with a diving mask, directing the hose to the desired material. Miners pay 

close attention to the material entering the hose to prevent items from clogging the flow 

and slowing the process. 

Typically, the best gold is found near or on bedrock. Miners using a suction 

dredge commonly test the productivity of an area by creating a sample hole down to the 

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No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

bedrock. If there are no viable signs of gold, the miner will move to another location. 

However, because the dredge equipment is heavy, miners pick a spot that gives them the 

most opportunities for alternatives. 

Generally, areas ideal for suction mining are not ideal for fish redds. Suction 

dredge miners generally do not consider loose streambed material favorable for gold 

deposits. However, both placer miners and redd building fish like stream material that 

collects on the back side of large boulders and rocks. 

Mr. Beatty sought an HPA permit to operate a suction dredge on Fortune Creek 

outside the work window. Fortune Creek is a high elevation, high velocity tributary to the 

Cle Elum River. While the main stem of the creek is approximately 2.5 miles, the creek 

also has a north fork, a south fork, and a number of smaller tributaries. The creek passes 

through federally owned forest land and is open to recreational fishing. 

Different portions of the Fortune Creek system exhibit distinct habitat 

characteristics for fish. Some areas have boulders with limited spawning areas, and other 

areas have more gravel and less velocity, creating a better spawning environment. 

Several species are known to reside in the creek, including spring cutthroat trout, rainbow 

trout, fall brook trout, and whitefish. Additionally, bull trout redds and limited numbers 

of bull trout have been observed in Fortune Creek. 

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Beatty v. Fish & Wildlife Comm 'n 

For Fortune Creek, the work window for suction dredging is August 1 through 

August 15. WDFW based the start date on rainbow trout and steel head spawning in 

similar streams in the vicinity ofFortune Creek. The ending date is based on the 

observation of bull trout redds in the creek. Although discovery ofthe redds occurred in 

September, WDFW concluded that the redds were likely constructed in August. 

In Mr. Beatty's HP A permit, he sought to use suction dredging and powered 

highbanking tools on Fortune Creek anywhere within the Fortune Creek watershed at any 

time within the five year period between May 1,2011, and September 30,2016, with 

suction dredging occurring between the months of May and September. 

Mr. Beatty intended to dredge 60 linear feet of stream bed each year. He planned 

to use either a three- to four-inch suction intake nozzle, or if allowed, a six-inch suction 

intake. nozzle. Like other miners, Mr. Beatty planned to put down sample holes until he 

reached a satisfactory site. If he found a deposit, he possibly would use a highbanker in 

conjunction with the suction dredge.2 

The WDFW issued Mr. Beatty a two year HPA permit and granted his request to 

use a gasoline-powered highbanker outside ofthe work window in the Pamphlet. 

However, the WDFW limited suction dredging to the two-week work window. In a letter 

2 A highbanker processes material at a mining location away from the stream. 

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No.31409-0-II1 

Beatty v. Fish & Wildlife Comm 'n 

to Mr. Beatty, the WDFW explained that it granted the permit for the highbanker but 

wished to conduct a site visit to evaluate the impact that the prospecting activities had on 

fish life in the relatively small stream. It also stated that it could not approve the suction 

dredging request because Fortune Creek had both spring and fall spawning fish, and eggs 

from these fish could be found in the gravel before and after the approved work window. 

Nevertheless, the WDFW said that permit approval for suction dredging was still a 

possibility for Mr. Beatty in Fortune Creek. The letter continued, '" [I]fyou were to 

provide us with site specific information where we can conduct a site assessment 

regarding the impacts to fish life, we may be able to issue a permit to allow work with a 

suction dredge outside of the standard work window.'" Clerk's Papers (CP) at 57. 

Mr. Beatty chose not to provide site specific information to WDFW after receipt of 

the letter. He did not believe that identifying particular dredging locations on the stream 

would be meaningful because conditions change each year. He also declined WDFW's 

offer to make a site visit and discuss measures that could be added to the permit to protect 

the fish species spawning in Fortune Creek. 

Mr. Beatty appealed the decision to the PCHB. An administrative hearing was 

held on the matter. Mr. Beatty contended that the condition restricting suction dredging 

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No. 31409-0-III 

Beatty v. Fish & Wildlifo Comm 'n 

to the work window was unreasonable because it did not serve the purpose ofprotecting 

fish life as required by RCW 77.55.021. 

Mr. Beatty presented evidence in an attempt to establish that the restriction was not 

needed because there was a low likelihood that his operation would harm fish life in 

Fortune Creek. Dr. Robert Crittenden, a biometrician and fish biologist, testified that the 

chance of a suction dredge miner encountering a redd on Fortune Creek was miniscule. 

Dr. Crittenden did not prepare a formal or detailed statistical analysis of potential harm to 

redds or the likelihood of encountering redds during spawning season. However, he 

presented a "back of the envelope" calculation of the statisdcallikelihood of a suction 

dredge miner encountering a redd on Fortune Creek. CP at 290. Dr. Crittenden's 

calculation used the size ofthe entire watershed area, anywhere between 5 and 10 miles, 

with Mr. Beatty mining 60 feet of stream anywhere in the watershed. By estimating the 

number ofredds and assuming the redds were randomly located, Dr. Crittenden estimated 

that the probability of encountering a redd was anywhere between one in ten thousand 

and one in a million. Dr. Crittenden stated that the probability was zero if miners and fish 

preferred different areas of the creek. Even then, Dr. Crittenden reasoned that harm to 

fish eggs was of little importance to protecting fish life because the majority of the eggs 

die under natural causes. 

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No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

Dr. Crittenden admitted that his personal observation of the creek was very 

limited. He stated that he observed the top ford ofthe creek once, but never visited the 

main stem ofthe creek. His conclusion that only a small portion of the creek was suitable 

redd habitat was based on the reports of others. 

Mr. Beatty testified that he would not encounter any redds because he avoids the 

type of areas that they are located. He said that he had never seen or stumbled across a 

redd. When asked what a redd looks like, Mr. Beatty gave a description of typical color, 

size, and location, but could not answer more specific questions. Mr. Beatty said that he 

works underwater close to the suction nozzle, so ifhe encounters a redd, he could move 

the nozzle away and take his equipment elsewhere. 

Mr. Beatty testified that he felt he was discriminated against in connection with the 

permit because other miners were getting increased work windows for suction dredging in 

other waterways in Washington. Mr. Beatty said that he was involved with the Pamphlet 

rule making process, and that the process was not smooth and harmonious. He stated that 

in one meeting, Perry Harvester repeatedly interrupted Mr. Beatty's wife while she tried 

to make a comment. Mr. Harvester's boss apologized for the incident. 

WDFW maintained that the decision on Mr. Beatty's permit was based on the 

information that he provided. WDFW biologists William Meyer and Mr. Harvester 

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No. 31409-0-111 

Beatty v. Fish & Wildlife Comm 'n 

testified that WDFW refused to extend the work window for suction dredging because of 

the lack of information about where Mr. Beatty would prospect. Mr. Meyer said that he 

could not determine the risk to the Fortune Creek area because Mr. Beatty failed to give 

him the information he needed to calculate quantitative impact. 

Mr. Harvester testified that the purpose of the restriction on Mr. Beatty's permit 

was the protection of fish life. Similarly, Mr. Meyer stated that his job was to write a 

permit that protects fish life, including eggs, fry and adults. He felt that he accomplished 

this purpose with Mr. Beatty's permit. He limited Mr. Beatty to the standard work 

window for suction dredging because Mr. Beatty would not discuss other options for the 

permit. However, he believed that there were areas where Mr. Beatty would have been 

approved to mine. 

As for fish life in Fortune Creek, Mr. Meyer testified that the creek is a good fish 

habitat and holds a number of different species of fish. Mr. Meyer personally observed 

the fish in the river during night snorkels. While he never witnessed a bull trout, he read 

reports that they were in the creek. The WDFW presented fish surveys of Fortune Creek 

that noted the presence of bull trout and other fish. 

Mr. Meyer testified that there were several areas on Fortune Creek that were 

suitable for redds, depending on the size ofthe fish. These areas include pools on the 

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No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

back side of large boulders suitable for placer mining. Mr. Meyer explained that the fish 

in Fortune Creek spawn primarily in concentrated areas, which if hit, would suffer a 

catastrophic impact. 

Also, Mr. Meyer testified that a trained biologist would have difficulty spotting 

redds before they are dug into. He described the redds found in high elevation streams as 

very tiny eggs, approximately the size ofBBs. Mr. Harvester used pictures of redds in 

streams to demonstrate the difficulty in spotting them. 

The WDFW presented evidence ofthe impact ofrunning eggs through a suction 

dredge. Eggs in their first stage of development that are caught in suction have a 

mortality rate ofnearly 100 percent. The mortality rate decreases significantly for eggs in 

their second stage. However, when eggs develop into sac fry, the mortality rate jumps up 

again to approximately 83 percent. In addition, eggs that survive the suction dredge are 

deposited on the streambed without cover, placing the eggs in extreme danger from 

predators and in an environment unsuitable for development. 

In contrast to Dr. Crittenden's testimony, Mr. Harvester testified that protecting 

redds is very important in developing fish populations. Furthermore, protecting redds of 

later emerging fish is important for genetic reasons. Redds from early-producing fish 

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No.3l409-0-II1 

Beatty v. Fish & Wildlife Comm 'n 

could be wiped out by a single flood event. However, redds produced after the flood 

event would still have a chance to survive. 

Mr. Harvester did not agree that he had a personal conflict with Mr. Beatty, and 

that his statements to Mr. Beatty's wife during the meeting were nothing more than a 

request for her to sit down if she did not have a question regarding the rules. Mr. 

Harvester said he played a limited role in processing Mr. Beatty's permit. 

The PCHB limited review of Mr. Beatty's arguments to those that addressed the 

WDFW's actions in the permit approval process. The PCHB found the permit review 

proceeding was not the appropriate vehicle for challenging the administrative rules the 

WDFW adopted and incorporated into the Pamphlet. For instance, the PCHB determined 

that Mr. Beatty's argument that fish protection should only be conducted on the resource 

level, rather than safeguarding all eggs and fish, is an attack on the regulations governing 

the work window and not a justification for an individual extension of the rules based on 

site specific information. 

The PCHB affirmed the WDFW's permit decision, concluding that the conditions 

placed on Mr. Beatty's permit were reasonably designed to protect fish life and do not 

impose restrictions unrelated or out of proportion to the proposed dredging activity. 

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No. 31409-0-111 

Beatty v. Fish & Wildlife Comm 'n 

Citing RCW 77.55.021, the PCHB explained that in order for an applicant to 

obtain an individual HPA permit extending the duly adopted timing window, the 

applicant must provide information showing that the requested activity would not harm 

fish life or habitat based on the conditions specific to the operation or conditions specific 

to the stream involved. The PCHB concluded that Mr. Beatty, as the applicant, failed to 

provide the information necessary to fully evaluate the impact of extending a duly 

adopted work window. He did not identify practices he would employ to avoid redds or 

describe any conditions on segments of Fortune Creek that might reduce the prospect of 

harm to redds. He refused to provide any information to the WDFW about his 

prospecting plans beyond his desire to suction dredge anywhere in the Fortune Creek 

watershed between May 1 and September 30 each year. Nor did he make an effort to 

gather information that would justify special exceptions from the established regulations 

for his prospecting in Fortune Creek. The PCHB explained that Mr. Beatty cannot expect 

to obtain approval of an HP A to relax a previously adopted regulation for protecting fish 

without providing any grounds or substantiation for the deviation from the regulation. 

The PCHB discredited Dr. Crittenden's testimony. It found Dr. Crittenden's 

statistical approximations were not based on valid assumptions for Fortune Creek. The 

approximations did not consider site specific operations or stream conditions when 

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No.31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

estimating the harm to fish. The same type of statistics applied to any stream with 

spawning activity. Furthermore, a statistical calculation based on the entire area within 

the watershed was again just a further attack on the WDFW policy of establishing a work 

window to protect fish and eggs. 

The PCHB also discredited Mr. Beatty's testimony that he could avoid harm by 

stopping the dredge immediately if he observed a redd. The PCHB found that it was 

unlikely that Mr. Beatty could see a redd before sucking it up into a dredge. The PCHB 

relied on evidence that redds are difficult to identify in a high velocity small stream like 

Fortune Creek and on evidence ofMr. Beatty's inexperience and lack of training in 

identifying eggs. The PCHB also found that stopping the dredge after encountering a 

redd would not avoid harm to eggs already sucked into the dredge and would decrease the 

number of fish emerging. The PCHB recounted evidence that many of the eggs that are 

sucked into a dredge are killed directly and the ejected eggs are deposited into a setting 

that does not allow for further development of fish. 

The PCHB also recognized that the Pamphlet already requires miners to stop 

dredging if they encounter a redd. The PCHB reasoned that if stopping dredging activity 

when eggs are encountered is adequate protection, then the Pamphlet would not have 

identified specific work windows at all. The court concluded that Mr. Beatty's argument 

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No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

was another improper attack on WDFW regulations rather than a justification for relaxed 

restrictions based upon the specific conditions on Fortune Creek. 

In affirming the permit condition, the PCHB concluded that Mr. Beatty failed to 

show that the condition on his permit was not reasonably designed to protect fish life, 

citing RCW 77.55.021. The dredging dates Mr. Beatty requested in the permit were the 

period oftime that WDFW had determined through the Pamphlet rulemaking process that 

fish redds would be present in Fortune Creek. The PCHB concluded that without any 

other information from Mr. Beatty on specific plans, the WDFW was not unreasonable in 

refusing to allow unrestricted suction dredging in Fortune Creek during the time periods 

that encompassed spawning and egg development. 

The PCHB also concluded that Mr. Beatty failed to show that the condition placed 

on the permit to optimize fish life was out ofproportion to the impact ofthe proposed 

project, citing RCW 77.55.231 (1). The court found that limiting work to the work 

window was a method of avoiding direct harm to fish, rather than a directive to enhance 

or improve existing fish habitat. Also, the condition was specially designed to address the 

harm to redds and eggs posed by the suction dredging activity in question and did not 

extend to enhancing habitat features or repairing damage caused by other persons or prior 

activity. Because Mr. Beatty did not include information in his application to support a 

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No.3l409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

deviation from the work window, the WDFW acted reasonably in limiting suction 

dredging to the time frame set forth in the Pamphlet. 

Finally, the PCHB concluded that the WDFW's decision on the permit was not the 

result of personal animosity toward Mr. Beatty. The PCHB determined that Mr. Beatty 

did not demonstrate that he received unfair treatment when compared to other miners. 

Other miners obtained extensions based on information specific to their proposed site. 

The WDFW provided Mr. Beatty the same opportunity to provide additional site specific 

information and offered to work with him to develop limits that would protect fish. The 

PCHB found that the WDFW was willing to vary the work window timing standards 

based on specific facts. Instead, Mr. Beatty chose to stand on his asserted right to mine 

without limitation. 

Mr. Beatty appealed the PCHB's decision to the Kittitas County Superior Court.3 

The court affirmed the PCHB's final order. The court found that substantial evidence 

supported the factual findings, that the statutory scheme of Washington's regulations on 

small scale mineral prospecting and mining is neither unconstitutionally vague nor 

preempted by federal law, and that the final order did not erroneously apply or interpret 

3 Mr. Beatty amended his petition for review to add a challenge to the Pamphlet 

rules. Later, the parties stipulated to bifurcate the rule challenge. The rule challenge is 

not a part ofthe appeal before this court. 

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No. 31409-0~III 

Beatty v. Fish & Wildlife Comm 'n 

the law. The court's decision focused on Mr. Beatty's refusal to provide site specific 

information despite WDFW's request. The court noted that the most critical fact in the 

proceedings was Mr. Beatty's refusal to meet and discuss his specific site information. 

Mr. Beatty appeals the decision ofthe PCHB. He contends that (1) the PCHB 

misinterpreted the state hydraulic mining code when imposing the conditions, (2) the 

PCHB's order is not supported by substantial evidence, (3) the conditions on the permit 

conflict with federal mining law, (4) the hydraulic mining code is unconstitutionally 

vague, (5) WDFW discriminated against him when it imposed the condition, and (6) the 

WDFW relied on an invalidly adopted rule to impose the condition. 

ANALYSIS 

The Washington Administrative Procedure Act, chapter 34.05 RCW, provides for 

judicial review ofPCHB's orders. RCW 34.05.570; Port o/Seattle v. Pollution Control 

Hearings Bd., 151 Wn.2d 568,587,90 P.3d 659 (2004). When reviewing an agency's 

action, this court sits in the same position as the superior court. Tapper v. Emp 't Sec. 

Dep't, 122 Wn.2d 397,402,858 P.2d 494 (1993). The party challenging the agency 

action has the burden of demonstrating the invalidity of the action. RCW 

34.05.570(1)(a). The challenging party must show that he or she has been substantially 

prejudiced by the agency action. RCW 34.05.570(1)(d). Additionally, reviewing courts 

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No. 31409-0-II1 

Beatty v. Fish & Wildlife Comm 'n 

shall grant relief only if the challenging party shows that the agency's order is invalid for 

one or more of the grounds enumerated in RCW 34.05.570(3)(a)-(i). We address Mr. 

Beatty's challenges under RCW 34.05.570(3) individually. 

Interpretation ofthe Hvdraulic Code. Mr. Beatty contends that the WDFW 

misinterpreted and misapplied the hydraulic permitting statute. Relief may be granted if 

this court finds that the PCHB has "erroneously interpreted or applied the law." 

RCW 34.05.570(3)(d). Whether the PCHB has erroneously interpreted or applied the law 

is reviewed under the error of law standard. Cascade Court Ltd. P'ship v. Noble, 105 

Wn. App. 563, 566-67, 20 P.3d 997 (2001). When applying the error of law standard, the 

court may substitute its own judgment for that of the PCHB, although it must give 

substantial weight to the agency's view of the law it administers. Id. at 567. Regulations 

that are consistent with the legislative scheme will be upheld. William Dickson Co. v. 

Puget Sound Air Pollution Control Agency, 81 Wn. App. 403, 407, 914 P.2d 750 (1996) 

(quoting ASARCO, Inc. v. Puget Sound Air Pollution Control Agency, 112 Wn.2d 314, 

321, 771 P.2d 335 (1989)). 

Relief can also be granted if the reviewing court finds the agency order is arbitrary 

and capricious. RCW 34.05.570(3)(i). An agency order is arbitrary or capricious if it is 

willful and unreasoning and disregards or does not consider the facts and circumstances 

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No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

underlying the decision. Alpha Kappa Lambda Fraternity v. Wash. State Univ., 152 Wn. 

App. 401, 421, 216 P.3d 451 (2009) (quoting Bowers v. Pollution Control Hearings Bd., 

103 Wn. App. 587, 596, 13 P.3d 1076 (2000». A decision is not arbitrary or capricious if 

there is room for more than one opinion and the decision is based on honest and due 

consideration, even ifwe disagree with it. Id. at 421-22 (quoting Bowers, 103 Wn. App. 

at 596). 

In 1997, the Washington legislature declared that small scale mineral prospecting 

and mining 

(1) [i]s an important part ofthe heritage ofthe state; (2) provides economic 

benefits to the state; and (3) can be conducted in a matter that is beneficial 

to fish habitat and fish propagation. Now, therefore, the legislature declares 

that small scale prospecting and mining shall be regulated in the least 

burdensome manner that is consistent with the state's fish management 

objectives and the federal endangered species act. 

LAWS OF 1997, ch. 415, §l. 

The legislature tasked the WDFW to adopt rules applicable to small scale 

prospecting and mining in cooperation with the recreational mining community and other 

interested parties. RCW 77.55.091(2). The WDFW included these regulations on 

mineral prospecting as part ofthe hydraulic code rules, WAC 220-110. See 

WAC 220-110-200 to -206. The hydraulic code provides protection for fish life through 

the development of a statewide system ofrules for hydraulic projects or other work that 

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No.31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

will use, divert, obstruct, or change the natural flow or bed of state waters. WAC 220­

110-010. Implementation of the hydraulic code rules is necessary to minimize project 

specific and cumulative impacts to fish life. WAC 220-110-010. 

F or small scale mining, the legislature required WDFW to distribute a pamphlet 

describing the methods of mineral prospecting consistent with WDFW's adopted rules. 

RCW 77.55.091(3). "The pamphlet shall be written to clearly indicate the prospecting 

methods that require a permit under this chapter and prospecting methods that require 

compliance with the pamphlet." RCW 77.55.091(3). The Pamphlet contains regulations 

that a person must follow when mineral prospecting and placer mining. WAC 220-110­

200(1). 

A person may request an exception to the Pamphlet by applying for an individual 

HPA permit. WAC 220-110-200(2). To obtain an individual permit, a person must 

submit a written application containing general plans for the overall project, complete 

plans and specifications for the proposed construction or work within the ordinary high 

water line in freshwater, and complete plans and specifications for the proper 

protection of fish life, among other requirements. WAC 220-110-030; see also 

RCW 77.55.021(2)(a)-(c). 

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The only ground upon which approval of a permit may be denied or conditioned is 

the protection offish life. Former RCW 77.55.021(3)(a) (2010). If the WDFW denies 

approval of a permit, it shall provide the applicant with a written statement of the specific 

reasons why and how the proposed project would adversely affect fish life. 

Former RCW 77.55.021(4). "An HPA shall be denied when, in the judgment of the 

[WDFW], the project will result in direct or indirect harm to fish life, unless adequate 

mitigation can be assured by conditioning the HPA or modifying the proposal." 

WAC 220-110-030(14). 

Approval of a permit may not be unreasonably withheld or unreasonably 

conditioned. Former RCW 77.55.021(3)(a). "Conditions imposed upon a permit must be 

reasonably related to the project. The permit conditions must ensure that the project 

provides proper protection for fish life, but the department may not impose conditions 

that attempt to optimize conditions for fish life that are out of proportion to the impact of 

the proposed project." RCW 77.55.231(1). 

The WDFW mitigation policy provides, "WDFW shall determine the project 

impact, significance of impact, amount of mitigation required, and amount of mitigation 

achieved, based on the best available information, including the applicant's plans and 

specifications. For large projects with potentially significant impacts, this will be based 

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No. 31409-0-111 

Beatty v. Fish & Wildlife Comm 'n 

on review ofstudies approved by WDFW." Ex. A-36 at 4. A similar but lengthier 

definition of "mitigation" can be found in WAC 220-11 0-020( 66). 

Mr. Beatty makes several challenges to the WDFW's interpretation of the statutory 

scheme governing his hydraulic mining permit. First, Mr. Beatty contends that the PCHB 

misinterpreted the legislative mandate to protect fish life as reflected in RCW 77.55.021. 

He contends that the WDFW interpreted the mandate to mean that every fish egg must be 

protected when issuing a permit under the hydraulic code, and used this interpretation as a 

basis to deny his request to suction dredge outside the work window. 

Contrary to Mr. Beatty's assertion, protection of every egg is not the interpretation 

adopted by the WDFW or the PCHB. The WDFW biologists who testified did not 

advocate for every egg, but recognized that protection of eggs must be based on the 

impact the eggs have on the fish population. As stated by Mr. Harvester, "But the idea 

was to protect most ofthe fish most of the time over most of the conditions that we have 

observed. So the intent was not to protect every fish. We knew that." CP at 179. 

WDFW's policy to protect fish life in general is reflected in the creation ofwork 

windows for mining. Work windows protect fish life by identifying the fish residing in 

each of hundreds ofwatercourses throughout the state and calculating the incubation 

periods necessary to protect the redds and eggs developing through emergence. The 

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Beatty v. Fish & Wildlife Comm 'n 

establishment of a work window contemplates some harm to fish eggs and fish life that 

develop outside of the specified dates. The work window provides a baseline measure of 

protection without any need for further regulatory control and does not contemplate 

protection of every egg. Thus, limiting Mr. Beatty to the work window did not evidence 

an interpretation by WDFW or PCHB that every egg must be protected. 

Second, Mr. Beatty contends the PCHB wrongly applied RCW 77.55.231, which 

requires the WDFW to develop permit conditions in proportion to the impact of the 

proposed project. Mr. Beatty argues that the WDFW was required to determine the 

specific impact of his project before imposing conditions. Instead offollowing the statute 

and policy, Mr. Beatty contends that PCHB allowed the WDFW to forego presenting 

testimony on the proposed impact and instead concluded that Mr. Beatty was responsible 

for providing the information. 

The PCHB did not err in its interpretation or application ofRCW 77.55.231 when 

deciding that WDFW's permit decision was correct. RCW 77.55.231 states that the 

WDFW is responsible for assuring that permit conditions that attempt to optimize 

conditions for fish life are not out ofproportion to the impact of the proposed project. 

The WFDW presented testimony at the hearing justifying the imposition of the condition. 

The WDFW judged the impact ofMr. Beatty's project by considering the specifications 

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No.31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

for the proposed construction and the proper protection of fish life. See 

RCW 77.55.021(2). Mr. Beatty's request was to suction dredge outside of the work 

window in Fortune Creek with no time or place restrictions. The WDFW detennined that 

dredging outside of the work window was hannful for fish life when it developed the 

Pamphlet. Thus, without infonnation in Mr. Beatty's application explaining why he 

would qualifY for an exception to the work window, imposing a pennit condition in 

accordance with the Pamphlet is not out of proportion to the impact of the project. 

Furthennore, neither RCW 77.55.231, nor the pennit application process in 

RCW 77.55.021, nor the hydraulic mining code in WAC 220-110 require the WDFW to 

quantifY the precise likelihood of impacts to fish life before imposing conditions. Instead, 

Mr. Harvester testified that risk outside the work window is based on a biologist's 

observations in conjunction with specific site and operation infonnation provided to the 

WDFW. Again, Mr. Beatty provided no specific site infonnation to the WDFW, so there 

was no basis to impose conditions other than those adopted in the Pamphlet. There is no 

misinterpretation of RCW 77.55.231. 

Next, in a related issue, Mr. Beatty contends that the PCHB and WDFW failed to 

obey the command ofthe legislature to utilize the least burdensome fonn of regulation. 

23 

No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

Mr. Beatty maintains that the WDFW needed to insert provisions in his permit to 

minimize impacts rather than denying his request to work outside of the work window. 

While legislative policy advocates for the least burdensome regulations, there is no 

statutory requirement that the WDFW must insert provisions in his permit that minimize 

impact. Also, there is no reason to conclude that other provisions were available to Mr. 

Beatty based on the information provided in his permit. Suction dredging in Fortune 

Creek is harmful to fish life when it occurs outside of the work window. To minimize 

impact, WDFW prohibited suction dredging during this period. If other less burdensome 

regulations were available to minimize impacts, they would have been included in the 

Pamphlet. Therefore, the PCHB did not misinterpret the permitting scheme by failing to 

require the WDFW to add minimizing impact provisions to Mr. Beatty's permit. 

Last, Mr. Beatty contends that the PCHB interpreted an extra obligation into the 

statutory permit process that requires an applicant to meet with the WDFW and provide 

more information before a decision can be granted. 

The PCHB did not add an extra requirement to the permitting process. Mr. Beatty 

was required to include site specific information in his permit application according to 

WAC 220-110-030. The PCHB acknowledged the reason for the denial of Mr. Beatty's 

permit was his lack of information to substantiate a deviation from the adopted work 

24 

No. 31409-0-III 

Beatty v. Fish & Wildlife Camm 'n 

window regulations. The WDFW offered to meet with Mr. Beatty to help gather the 

information needed to assess the application, but did not require the visit. The PCHB's 

determination that Mr. Beatty needed to provide more information to qualifY for an 

exception to the Pamphlet was not a misinterpretation ofthe law. The PCHB correctly 

interpreted the hydraulic code when it affirmed the conditions on Mr. Beatty's permit. 

Sufficiency afthe Evidence. Mr. Beatty contends that the PCHB's decision to 

uphold the permit conditions is not supported by the evidence. 

The substantial evidence standard in RCW 34.05.570(3)(e) allows this court to 

grant relief ifthe agency's decision "is not supported by evidence that is substantial when 

viewed in light ofthe whole record before the court." Evidence is substantial ifit is in 

sufficient quantum to persuade a fair-minded person ofthe truth ofthe declared premise. 

Heinmiller v. Dep't a/Health, 127 Wn.2d 595, 607, 903 P.2d 433 (1995) (quoting Thieu 

Lenh Nghiem v. State, 73 Wn. App. 405,412,869 P.2d 1086 (1994)). This standard is 

highly deferential to the agency fact finder. ARCa Prods. Co. v. Uti/so & Transp. 

Comm 'n, 125 Wn.2d 805, 812, 888 P.2d 728 (1995). When reviewing the evidence, the 

court should give substantial deference to the agency's determinations, which are based 

heavily on factual matters, especially when the factual matters are complex, technical, and 

close to the heart ofthe agency's expertise. Hillis v. Dep't 0/Ecology, 131 Wn.2d 373, 

25 

No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

396,932 P.2d 139 (1997). Reviewing courts do not substitute their judgment for that of 

the decision maker with regard to the credibility ofwitnesses or the weight granted to 

conflicting evidence. William Dickson Co., 81 Wn. App. at 411 (quoting State ex rei. 

Lige & William B. Dickson Co. v. County 0/Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 

(1992». 

The agency's legal conclusions receive de novo review under the error of law 

standard. Stuewe v. Dep't o/Revenue, 98 Wn. App. 947, 949, 991 P.2d 634 (2000). 

Mr. Beatty asserts that the WDFW failed to present substantial evidence showing 

impact or risk to fish. And, without any evidence of impact, the PCHB could not uphold 

the denial of his permit request. Implicit in this argument is the notion the WDFW bears 

the burden, when denying a permit, ofdemonstrating some likelihood his proposed 

mining operation will endanger fish life. 

As a preliminary note, it is not appropriate under Washington law to shift the 

burden ofproof under these circumstances to the WDFW as Mr. Beatty suggests. 

WAC 371-08-485 placed the burden on Mr. Beatty in the administrative hearing and 

RCW 34.05.570(1)(a) places the burden on Mr. Beatty in this appeal. Furthermore, 

"[w]hen information necessary to proof 'is exclusively within the knowledge of one or the 

other of the parties, the burden would be upon the party possessed of that knowledge to 

26 

No.31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

make the proof.'" Cedar River Water & Sewer Dist. v. King County, 178 Wn.2d 763, 

779,315 P.3d 1065 (2013) (quoting JoUY.]e v. N. Pac. R.R., 52 Wash. 433, 436,100 P. 

977 (1909». Only Mr. Beatty knows the locations ofFortune Creek where he proposes to 

suction dredge. The burden of proof cannot shift to WDFW. WDFW does not have 

access to site specific location information of Mr. Beatty's suction dredging as he did not 

supply it with his initial application or after WDFW requested it. 

In his sufficiency ofthe evidence argument, Mr. Beatty assigns error to several of 

the PCHB's findings. First, he challenges the findings that bull trout redds and bull trout 

have been observed in Fortune Creek. This finding is supported by substantial evidence. 

The WDFW presented records from night snorkeling surveys conducted in July 2000 that 

documented buH trout in Fortune Creek. Also, the WDFW submitted a draft of a 2000 

study by the United States Fish and Wildlife Service that found at least 11 bull trout redds 

in Fortune Creek. The PCHB relied on these studies in its findings. These studies 

support the PCHB' s finding of bull trout in Fortune Creek. 

Second, Mr. Beatty challenges the findings that pertain to his ability to mitigate the 

damage to fish eggs. He assigns error to the findings that he had no real experience in 

recognizing redds and that redds were generally difficult to locate. Also, Mr. Beatty 

27 

No. 31409-0-111 

Beatty v. Fish & Wildlife Comm 'n 

contends that the PCHB should have allowed hearsay declarations from other miners who 

stated that they never found fish eggs. 

These findings are also supported by substantial evidence. Mr. Beatty testified that 

he had never seen a redd. While he gave a description of a redd, the testimony was based 

on information Mr. Harvester provided at a stakeholder meeting. Mr. Beatty could not 

answer when asked specific questions about the color of the eggs and the type of gravel 

where redds may be found. Mr. Harvester, a WDFW biologist, testified to the difficulties 

in identifying redds. This testimony ofMr. Beatty and Mr. Harvester sufficiently 

supports the PCHB's findings. Also, the PCHB did not err by excluding the declarations 

of the miners. The weight of this evidence would not have had an effect on the PCHB's 

findings. 

Next, Mr. Beatty challenges the PCHB's finding that the WDFW's decision on the 

application was not the result ofpersonal animosity toward Mr. Beatty. Mr. Beatty 

contends that the evidence of an altercation between his wife and Mr. Harvester created a 

bias against Mr. Beatty and led to the denial of his permit. 

Substantial evidence supports the finding that the decision on the permit was not 

based on personal animosity or retaliation. While there is evidence of a brief exchange 

between Mr. Harvester and Mr. Beatty's wife at a rule development meeting, there is no 

28 

No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

evidence that this influenced the permit decision. Mr. Harvester testified that he did not 

take umbrage against Mr. Beatty. The PCHB found this testimony credible. 

Ultimately, Mr. Beatty contends that the evidence as a whole does not show an 

impact or risk to fish. Mr. Beatty's challenge is based largely on Dr. Crittenden's 

testimony that there is only a small chance-between one in ten thousand and one in a 

million-of randomly selecting a spot along the course of the affected river where fish 

were spawning. Mr. Beatty asserts that on the strength of this testimony there is only an 

insignificant chance he would mine at the site of a fish habitat. Thus, the WDFW did not 

demonstrate that his proposed mining operation would likely endanger fish life. 

However, the WDFW was not required to find Mr. Beatty's mining operation was 

likely to harm fish life in order to deny him his permit. It was required to determine, 

based on the evidence provided, only whether the potential risk of his proposed operation 

could be adequately managed. The unavailability of sufficient evidence here resulted 

from Mr. Beatty's failure to submit a complete written application specifying each 

location of his proposed operation as he was required to do. Mr. Beatty was not going to 

select mining sites at random, as Dr. Crittenden's testimony suggested. In order to 

determine the probability that Mr. Beatty would mine at the site of a fish habitat, the 

WDFW had to know where those sites would be. 

29 
No. 31409-0-111 

Beatty v. Fish & Wildlife Camm 'n 

The PCHB correctly found that Dr. Crittenden's testimony was too general and not 

meaningful. Dr. Crittenden's testimony was really nothing more than a demonstration of 

the futility ofmaking any kind of quantification of the risk ofharm posed by Mr. Beatty's 

proposed operation. In evaluating the kind of evidence presented by Dr. Crittenden, one 

must ask whether (1) the study was properly designed and (2) whether it was based on 

sufficient data. The study, a "back of the envelope" calculation on its face did not answer 

a relevant question. It addressed only the likelihood of randomly selecting a spot on the 

river where fish were spawning. The relevant question was whether a mining site 

designated by the applicant (not randomly selected) would coincide with a fish habitat 

site. Additionally, Dr. Crittenden failed to employ any generally accepted hypothesis 

testing required to evaluate the significance of his conclusions. See D.H. Kaye, Is Proof 

ofStatistical Significance Relevant?, 61 WASH. L. REv. 1333 (1986). 

Apparently the only datum available to Dr. Crittenden was the length of the river. 

Dr. Crittenden was unable to supply any reliable data establishing even the proportion of 

the river covered by fish habitat. This, coupled with Mr. Beatty's failure to disclose the 

location of his operations made it impossible to make any meaningful prediction about the 

likelihood ofharm occurring. There was no basis to estimate the degree ofpossible harm. 

This lack of data disfavored any kind of statistical proof. Under these circumstances, the 

30 

No. 31409-0-II1 

Beatty v. Fish & Wildlife Comm 'n 

PCHB was entitled both to reject Dr. Crittenden's attempt to quantifY the risk of Mr. 

Beatty's proposed operation and to conclude there was no adequate means of managing 

that risk. Thus, the PCHB's finding that Dr. Crittenden's testimony was too general and 

not meaningful is supported by evidence. 

Mr. Beatty's challenge to the sufficiency of the evidence fails. Mr. Beatty's 

application did not include site or operation specific information that would have allowed 

the WDFW to determine the risks of Mr. Beatty's operation and whether an exception 

was warranted from the work window. The PCHB correctly concluded that "the 

conditions WDFW placed on [Mr. Beatty's permit] are reasonably designed to protect 

fish life and do not impose restrictions unrelated to or out of proportion to the proposed 

dredging activity." CP at 73-74. The PCHB order affirming the suction dredging 

condition is supported by substantial evidence. 

Conflict with Federal Mining Laws. Mr. Beatty contends that WDFW's 

regulations are preempted by federal law because they materially interfere with mining on 

his federal mining claim. Mr. Beatty maintains that the condition on his permit 

essentially prohibits him from exercising his mining rights. 

We may declare an agency rule invalid as applied if it violates constitutional 

provisions or ifit exceeds statutory authority of the agency. RCW 34.05.570(3)(a), (b); 

31 

No. 31409-0-II1 

Beatty v. Fish & Wildlife Comm 'n 

Ass 'n ofWash. Bus. v. Dep't ofRevenue, 155 Wn.2d 430, 437, 120 P.3d 46 (2005). The 

validity of an agency rule is reviewed de novo. Ass 'n ofWash. Bus., 155 Wn.2d at 437. 

Similarly, de novo review applies to questions of federal preemption. Robertson v. Wash. 

State Liquor Control Bd., 102 Wn. App. 848, 853, 10 P.3d 1079 (2000). 

The Supremacy Clause in the United States Constitution gives the federal 

government the power to preempt state law. Arizona v. United States, _ U.S. _, 132 S. 

Ct. 2492, 2500-01,183 L. Ed. 2d 351 (2012). Preemption can occur in three ways: 

express preemption, field preemption, and conflict preemption. Id. Express preemption 

occurs when Congress expressly withdraws specified powers from a state through a 

statutory provision. Id. Field preemption occurs when Congress determines that a field 

of conduct must be regulated by its exclusive governance. Id. Conflict preemption 

occurs when federal and state laws conflict making compliance with both a physical 

impossibility, or when the challenged state law stands '" as an obstacle to the 

accomplishment and execution ofthe full purposes and objectives of Congress.'" Id. at 

2495 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)). 

Conflict preemption is at issue here, specifically, whether the permit conditions imposed 

by the WDFW and upheld by the PCHB stand as an obstacle to the purpose of the federal 

mining laws. 

32 
No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

To determine whether the permit condition is preempted, "we must first determine 

the purposes and objectives of Congress that are embodied in the [Federal Mining Act of 

1872,30 U.S.C. §§ 21-26]. Second, we must determine whether the [condition] stands as 

an obstacle to the accomplishment of these Congressional purposes. H South Dakota 

Mining Ass'n v. Lawrence County, 155 F.3d 1005, 1009 (8th Cir. 1998). 

The Federal Mining Act provides for the free and open exploration ofpublic lands 

for valuable mineral deposits. 30 U.S.C. § 22. Generally, the purpose of federal mining 

regulations is for "the encouragement of exploration for mining ofvaluable minerals 

located on federal lands, providing federal regulation of mining to protect the physical 

environment while allowing the efficient and economical extraction and use ofminerals, 

and allowing state and local regulation of mining so long as such regulation is consistent 

with federal mining law." South Dakota Mining, ISS F.3d at 1010. 

Federal forest service regulations, including the Federal Mining Act and the 

Multiple Use Mining Act, 30 U.S.c. § 601, do not preempt a general state environmental 

regulation requiring a permit for operating a mining claim on federal land. California 

Coastal Comm 'n v. Granite Rock Co., 480 U.S. 572, 582-95, 107 S. Ct. 1419,941. Ed. 

2d 577 (1987). 

33 

No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

In Granite Rock, the California Coastal Act, California Public Resources § 30000, 

required any person undertaking development in the state's coastal zone to obtain a 

permit from the coastal commission, including those wishing to exercise federal mining 

rights. Id. at 576. Granite Rock refused to obtain a permit for its limestone mining 

operation on federal land within the coastal zone. Id. at 576-77. Instead, Granite Rock 

challenged the permit requirement in federal court, contending that the state law permit 

requirement was preempted by federal law. Id. at 577. The United States Supreme Court 

concluded that the state law permit requirement, as a means of imposing reasonable 

environmental regulations on mining operations, was not in conflict with federal law and 

was not preempted on its face. Id. at 594. 

However, the Court limited the scope of its decision to the facial challenge 

presented. Id. It pointed out that Granite Rock did not argue that the coastal commission 

placed any particular conditions on the permit that conflicted with federal statutes or 

regulations. Id. at 579-80. Thus, the Court did not approve any future application of the 

state permit requirement that conflicted with federal law. Id. at 594. 

This case presents the issue left open in Granite Rock. Specifically, whether the 

condition on Mr. Beatty's permit conflicts with federal law. As the court noted in 

34 

No. 31409-0-III 

Beatty v. Fish & Wildllft Comm 'n 

Granite Rock, "one may hypothesize a state environmental regulation so severe that a 

particular land use would become commercially impractical." Id. at 587. 

The condition on Mr. Beatty's permit and the state regulations supporting the 

condition do not stand as an obstacle to the accomplishment of the federal mining laws. 

The general environmental mining regulations imposed in the Pamphlet still allow Mr. 

Beatty to exercise his federal mining rights, albeit with restrictions. The mining 

restrictions and permit conditions are designed to protect the physical environment for the 

development of fish life, which is consistent with the Federal Mining Act. 

The restrictions in the Pamphlet do not act as a de facto ban on mining. If the 

allowable mining methods in the Pamphlet are not suitable or economically viable, a 

miner may request relaxed mining regulations by completing an application with site 

specific information and specifications for the proper protection of fish life. See 

WAC 220-110-030. As another layer ofprotection, any condition placed on the 

permit to optimize fish life cannot be out ofproportion to the proposed project. 

RCW 77.55.231(1). This provision limits the burden that the WDFW can place on 

exploration for mining valuable minerals. As applied to Mr. Beatty, he may provide the 

information needed to obtain an exception from the Pamphlet regulations and modify the 

35 

No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

conditions imposed on his pennit. The mining regulations and the modifiable condition 

on his pennit do not stand as an obstacle to Mr. Beatty's right to mine. 

In sum, the condition on Mr. Beatty's pennit does not conflict with federal 

regulations on mineral prospecting. The condition allows for the exploration of public 

lands for valuable mineral deposits while protecting the physical environment. 

Furthennore, the efficient and economical extraction of minerals is not obstructed. Mr. 

Beatty may apply for an exception to the pennit conditions and propose a site specific 

plan that increases his mineral production while protecting fish life. 

Constitutional Challenges. Mr. Beatty makes two constitutional challenges to the 

PCHB's approval of the pennit. Mr. Beatty contends that the hydraulic mining pennit 

statute, RCW 77.55.021, is unconstitutionally vague because the statute fails to give the 

WDFW any guidance on the proper scope of review for a pennit application. He also 

contends that he was subject to unconstitutional discrimination. 

Mr. Beatty is incorrect. The hydraulic mining pennit statute is not 

unconstitutionally vague. The statute provides an identifiable standard for denying a 

pennit. Fonner RCW 77.55.021(3)(a) directs the WDFW that protection offish life is the 

only grounds upon which approval of a pennit may be denied. The WDFW defined fish 

as all fish species, including food fish and game fish, at all stages of development of those 

36 

No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

species. Fonner RCW 77.08.01 O( 17) (2009). "Protection of fish life" is defined as 

"prevention of loss or injury to fish or shellfish, and protection of the habitat that supports 

fish and shellfish populations." WAC 220-110-020(79). The statute and definitions 

provide suitable guidance for the WDFW to deny a pennit on the grounds that it 

endangers the fish population. 

Furthennore, the court in State v. Crown Zellerbach Corp., 92 Wn.2d 894, 900-01, 

602 P .2d 1172 (1979) held that the statute delegating authority to WDFW was 

constitutionally enforceable under the delegation ofpowers principle. The court found 

the general standards given in the statute were adequate, "particularly in light of our 

stated view that environmental factors are not readily subject to standardization or 

quantification." Id. at 900. There is no evidence in the record that would support a 

conclusion that RCW 77.55.021 was unconstitutional as applied to Mr. Beatty. 

Mr. Beatty's relies on Anderson v. City ofIssaquah, 70 Wn. App. 64, 851 P.2d 744 

(1993) as authority that a precise standard is needed in the environmental context. Mr. 

Beatty's reliance is misplaced. Anderson is not persuasive. The building code 

regulations in Anderson are not comparable to the hydraulic mining code in 

WAC 220-110. The words used in Issaquah's building code were not technical words 

37 

No. 31409-0-111 

Beatty v. Fish & Wildlife Comm 'n 

commonly understood within the industry. Anderson, 70 Wn. App. at 77. Nor did the 

regulations involve environmental factors not subject to standardization. 

Mr. Beatty contends that the WDFW unconstitutionally discriminated against him 

because he was not treated the same as other miners downstream who received permits. 

Mr. Beatty fails to cite legal authority for his argument. Citations to legal authority and 

reference to relevant portions ofthe record must be included in support of issues raised on 

appeal. RAP 10.3(a)(5). "Without adequate, cogent argument and briefing, this court 

should not consider an issue on appeal." Schmidt v. Cornerstone Inv., Inc., 115 Wn.2d 

148, 160, 795 P.2d 1143 (1990). In any case, there is no evidence ofdisparate treatment. 

The miners downstream are not similarly situated to Mr. Beatty because they provided 

site specific information to WDFW to obtain work window extensions. The WDFW 

offered Mr. Beatty the same opportunity to explore a site specific solution to obtain a 

permit extension, but Mr. Beatty refused. Mr. Beatty's discrimination claim fails. 

The hydraulic mining permit statute is not unconstitutionally vague. Nor did the 

WDFW discriminate against Mr. Beatty. 

Adoption ofWDFW's Mitigation Policy' Mr. Beatty contends that the mitigation 

policy adopted by the WDFW is a "rule" as defined by RCW 34.05.010(16) in 

38 

No. 31409-0-111 

Beatty v. Fish & Wildlife Comm 'n 

Washington's Administrative Procedure Act, and that the WDFW did not follow 

prescribed rule-making procedures in adopting a rule. 

An agency action constitutes a rule only if it meets the requisite elements in 

RCW 34.05.010(16). The action must be an agency order, directive, or regulation of 

general applicability and meet one ofthe five expressed qualifiers in the definition. 

RCW 34.05.010(16). 

As stated earlier, the WDFW mitigation policy provides, "WDFW shall determine 

the project impact, significance of impact, amount ofmitigation required, and amount of 

mitigation achieved, based on the best available information, including the applicant's 

plans and specifications. For large projects with potentially significant impacts, this will 

be based on review of studies approved by WDFW." Ex. A-36 at 4. 

Similarly, "mitigation" in hydraulic permits is defined by rule in WAC 220-110­

020(66) and means "actions that shall be required as provisions of the HPA to avoid or 

compensate for impacts to fish life resulting from the proposed project activity." The 

definition lists the types of mitigation to be considered and implemented, where feasible, 

in the following sequential order ofpreference: 

39 

No. 31409-0-III 

Beatty v. Fish & Wildlife Comm 'n 

(a) Avoiding the impact altogether by not taking a certain action or 

parts of an action; 

(b) Minimizing impacts by limiting the degree or magnitude ofthe 

action and its implementation; 

(c) RectifYing the impact by repairing, rehabilitating, or restoring the 

affected environment; 

(d) Reducing or eliminating the impact over time by preservation and 

maintenance operations during the life of the action; 

(e) Compensating for the impact by replacing or providing substitute 

resources or environments; or 

(f) Monitoring the impact and taking appropriate corrective measures to 

achieve the identified goal. 

WAC 220-110-020(66). 

Mr. Beatty neglected to address which ofthe qualifiers in RCW 34.05.010(16) 

apply to the WDFW's action in order to classifY the internal mitigation policy as a rule. 

Still, it is clear that the internal mitigation policy is not a new directive to the agency to 

consider mitigation. The internal policy is a simplified restatement of WAC 220-110­

020(66). The much shorter internal mitigation policy simply reiterates the mitigation rule 

and reminds persons in the WDFW to follow the rule. 

In any case, the mitigation policy did not affect Mr. Beatty. The WDFW did not 

consider mitigation because Mr. Beatty did not submit a mitigation plan to the WDFW or 

work with them to develop a mitigation plan. Without an influence on the decision, there 

is no violation. 

40 
No. 31409-0-II1 

Beatty v. Fish & Wildlife Comm 'n 

In conclusion, we find no error with the PCHB's decision on Mr. Beatty's permit. 

We affirm the decision of the superior court. 

WE CONCUR: 


41